Berkeley Journal of Employment & Labor Law
Volume 13 | Issue 1
Article 5
June 1991
Eros Gone Awry: Liability under Title VII for
Workplace Sexual Favoritism
Joan E. Van Tol
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Recommended Citation
Joan E. Van Tol, Eros Gone Awry: Liability under Title VII for Workplace Sexual Favoritism, 13 Berkeley J. Emp. & Lab. L. 153 (1991).
Available at: http://scholarship.law.berkeley.edu/bjell/vol13/iss1/5
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Eros Gone Awry: Liability Under Title
VII for Workplace Sexual
Favoritism
Joan E. Van Tolt
Sexualfavoritism is the preferentialtreatmentof an employee because
that employee granted sexual favors to the employer. In this article, Professor Van Tol notes that the legal, feminist and organizationalperspectives on sexual harassment all share the concept of power as a defining
factor, and that this concept also defines sexual favoritism. She analyzes
court treatment of sexualfavoritism claims, both before and after Meritor
Savings Bank v. Vinson, the landmarkSupreme Court case on sexual harassment. She argues that revised EEOC Guidelines restrictingsexual harassment causes of action to quid pro quo and hostile environment claims
are wrong and not mandated by Meritor. Finally, the author argues that
sexual favoritism should be recognized as a distinctform of sexual harassment under Title VII
INTRODUCTION ................................................
153
I.
SEXUAL HARASSMENT: DEFINITIONS AND THEORIES ......
156
162
167
II.
THE DISCRIMINATORY EFFECTS OF SEXUAL FAVORITISM..
III.
SEXUAL FAVORITISM CLAIMS UNDER TITLE VII ..........
IV.
RETHINKING TITLE VII LIABILITY FOR SEXUAL
FAVORITISM ..............................................
177
CONCLUSION ...................................................
181
INTRODUCTION
In her pioneering' work on sexual harassment, Professor Catherine
t Assistant Professor of Law, West Virginia University College of Law (on leave 1992-93);
B.A. 1976, West Virginia University; J.D. 1980, West Virginia University College of Law. I wish to
acknowledge, with gratitude, the research assistance of Patricia Barnes, a third year student at West
Virginia University College of Law. I acknowledge, too, the research assistance and support of Ann
Keel, also a student at West Virginia University College of Law; I only wish she had lived to celebrate the publication of this article.
i. The term "pioneering work" has become trite when used to describe Professor Catherine
A. MacKinnon's book, The Sexual Harassment of Working Women (1979); however, no other word
describes both the impact and value of this well-worn book. Her instructive and thought-provoking
work certainly "prepared the way" for my own research in this area of the law. Therefore, I use the
term with apologies to those who find its use unimaginative.
© Joan E. Van Tol, 1992.
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[Vol. 13:153
MacKinnon described the concept that an employer could be liable for
discrimination because of sexual favoritism32 as "probably beyond the
currently imaginable reach of most courts."
Just one year later, the Equal Employment Opportunity Guidelines
were amended to recognize sexual favoritism as a form of unlawful sex
discrimination. 4 In 1983,1 one federal court recognized sexual favoritism
as an actionable form of sexual harassment. 6 Soon thereafter, two other
district courts and the Court of Appeals for the District of Columbia also
2. Sexual favoritism claims typically involve allegations by the plaintiff that a co-worker received preferential treatment in exchange for granting sexual favors to the defendant employer. The
essence of these claims is that the employer discriminated against the plaintiff, an otherwise qualified
individual, by granting the employment benefit or opportunity in question to a co-worker who submitted to the employer's sexual advances or requests. EEOC Policy Guidance on Employer Liability
for Sexual Favoritism, DAILY LABOR REPORT (BNA) No. 32, at D-I (Feb. 15, 1990).
These claims are also known as "paramour cases" or third party sexual harassment claims. See,
e.g., Cairo v. OH Material Corp., 710 F. Supp. 1069, 1072 (M.D. La. 1989) (court's reference to the
"so-called paramour cases"); Women in the Workforce: Supreme Court Issues- Hearing Before the
Subcomm. on Employment Opportunities of the House Comm. on Education and Labor, 99th Cong.,
2d Sess. 114 (1986) (testimony of Sarah E. Bums, Assistant Director, Georgetown University Law
Center Sex Discrimination Clinic summarizing prepared statement of Lorence Kessler, Attorney,
McGuinness & Williams) [hereinafter Women in the Workforce Hearings].
One commentator has declined to use this characterization of the cases "because the word 'paramour' implies an illicit sexual partner of a married man or woman" and "[tihe alleged sexual
relationships at issue in the cases... are not always illicit in that sense." Mary C. Manemann, The
Meaning of "Sex" in Title VIP: Is Favoringan Employee Lover a Violation of the Act?, 83 Nw. U. L.
REV. 612, 612 n.3 (1989). See also Martha Chamallas, Consent, Equality, and the Legal Control of
Sexual Conduct, 61 S. CAL. L. REV. 777, 845 (1988) ("[tlhis species of sexual encounter has not yet
been given a name that captures all of its dimensions").
3.
CATHERINE A.
MACKINNON, SEXUAL HARASSMENT OF WORKING WOMEN 197 (1979).
In a 1979 U.S. Department of Commerce memorandum, for example, it was recognized that "a form
of sexual harassment which may be harder for employees to cope with occurs when people use [the]
power of their office or position to control, influence or affect the career, salary, or job of another
employee (or prospective employee) in exchange for sexual favors." Sexual Harassmentin the Federal Government: Hearings before Subcomm on Investigations of the House Comm. on Post Office
and Civil Service, 96th Cong., 1st Sess. 174 (1979) [hereinafter Sexual HarassmentHearings].
In fact, when Professor MacKinnon described this theory of discrimination a split of authority
existed over whether sexual harassment was even actionable under Title VII; the theory of sexual
harassment as sex discrimination was in its infancy. See, e.g., Miller v. Bank of America, 418 F.
Supp. 233 (N.D. Cal. 1976), rev'd on other grounds, 600 F.2d 211 (9th Cir. 1979); Come v. Bausch &
Lomb, Inc., 390 F. Supp. 161 (D. Ariz. 1975), vacated and remanded on other grounds, 562 F.2d 55
(9th Cir. 1977); Barnes v. Train, 13 Fair Empl. Prac. Cas. (BNA) 123 (D.D.C. 1974), rev'd sub nom.
Barnes v. Costle, 561 F.2d 983 (D.C. Cir. 1977).
Thus, in this context, the allusion to the outermost reach of the theory of sexual harassment was
probably more chimerical than prophetic. See, e.g., Tomkins v. Public Serv. Elec. & Gas Co., 422 F.
Supp. 553, 556 (D.N.J. 1976) ("[i]t is clear that such a claim [of sexual favoritism] is simply without
the scope of the Act"), rev'd and remanded, 568 F.2d 1044 (3rd Cir. 1977).
4. 45 Fed. Reg. 74676, 74677 (1980) (to be codified at 29 C.F.R. § 1604.1 l(g)). These guidelines provided that:
Where employment opportunities or benefits are granted because of an individual's submission to the employer's sexual advances or requests for sexual favors, the employer may be
held liable for unlawful sex discrimination against other persons who were qualified for but
denied that employment opportunity or benefit.
5. Toscano v. Nimmo, 570 F. Supp. 1197 (D. Del. 1983).
6. Id. at 1199. See also 42 U.S.C. § 2000e(l)-(17) (1988).
19911
EROS GONE AWRY
recognized sexual favoritism claims as a form of sexual harassment under
Title VII.7 Against the backdrop of the fairly rapid development of this
once unimaginable cause of action, the recent issuance of new policy guidance from the EEOC signals an intention to narrow the scope of an
employer's liability for sexual favoritism.'
This article, which traces the development (and decline) of this new
cause of action, begins with a brief analysis of the divergent perspectives
on sexual harassment. This analysis is provided as a backdrop against
7. Broderick v. Ruder, 685 F. Supp. 1269 (D.D.C. 1988); Priest v. Rotary, 634 F. Supp. 571
(N.D. Cal. 1986); King v. Palmer, 598 F. Supp. 65 (D.D.C. 1984), rev'd, 778 F.2d 878 (D.C. Cir.
1985). See also Robert A. Shearer, Paramour Claims Under Title VII: Liability for CoWorker/Employer Sexual Relationships, 15 EMPLOYEE REL. L.J. 57 (1989); Manemann, supra note
2. No attempt has been made to provide an exhaustive discussion of the law of sexual harassment.
For a closer examination and discussion of this issue see R. BAXTER & L. HERMLE, SEXUAL HARASSMENT IN THE WORKPLACE (3d ed. 1989); BARBARA A. GUTEK, SEX AND THE WORKPLACE:
THE IMPACT OF SEXUAL BEHAVIOR AND HARASSMENT ON WOMEN, MEN, AND ORGANIZATIONS
(1985); SUSAN OMILIAN, SEXUAL HARASSMENT IN EMPLOYMENT (1987); Kathryn Abrams, Gender Discrimination and the Transformation of Workplace Norms, 42 VAND. L. REV. 1183 (1989);
Katherine S. Anderson, Employer Liability Under Title VII for Sexual HarassmentAfter Meritor
Savings Bank v. Vinson, 87 COLUM. L. REV. 1258 (1987); Christopher P. Barton, Between the Boss
and a Hard Place: A Consideration of Meritor Savings Bank, FSB v. Vinson and the Law of Sexual
Harassment, 67 B.U. L. REV. 445 (1987); Sharon T. Bradford, Relieffor Hostile Work Environment
Discrimination:Restoring Title VII's Remedial Powers, 99 YALE L.J. 1611 (1990); Nancy Brown,
Meritor Savings Bank v. Vinson: Clarifying the Standardsof Hostile Working Environment Sexual
Harassment, 25 Hous. L. REV. 441 (1988); Theodore F. Claypoole, Inadequacies in Civil Rights
Law: The Need for Sexual Harassment Legislation, 48 OHIO ST. L.J. 1151 (1987); Barbara L.
Zalucki, Defining Hostile Work Environment Under Title VII, 11 W. NEW ENG. L. REV. 143 (1989);
Grace M. Dodier, Meritor Savings Bank v. Vinson: Sexual Harassment at Work, 10 HARV. WOMEN'S L.J. 203 (1987); John J. Donohue, ProhibitingSex Discriminationin the Workplace: An Economic Perspective, 56 U. CHI. L. REV. 1337 (1989); Gayle Ecabert, An Employer's Guide to
UnderstandingLiabilityfor Sexual Harassment Under Title VII Meritor Savings Bank v. Vinson, 55
U. CIN. L. REV. 1181 (1987); Nancy S. Ehrenreich, PluralistMyths and Powerless Men: The Ideology of Reasonableness in Sexual Harassment Law, 99 YALE L.J. 1177 (1990); Sheryl A. Greene,
Reevaluation of Title VII Abusive Environment Claims Based on Sexual Harassment, 13 T. MARSHALL L. REV. 29 (1988); Heather Hemming, Women in a Man's World: Sexual Harassment, 38
HUM. REL. 67 (1985); Jill W. Henken, Hostile Environment Claims of Sexual Harassment: The
Continuing Expansion of Sexual Harassment Law, 34 VILL. L. REv. 1243 (1989); Frances L. Hoffmann, Sexual Harassment in Academia: Feminist Theory and Institutional Practice, 56 HARV.
EDUC. REV. 105 (1986); David Holtzman & Eric Trelz, Recent Developments in the Law of Sexual
Harassment: Abusive Environment Claims after Meritor Savings Bank v. Vinson, 31 ST. LouIs U.
L.J. 239 (1987); Lucy B. Longstreth, Hostile Environment Sexual Harassment:A Wrong Without a
Remedy?-Meritor Savings Bank v. Vinson, 21 SUFFOLK U. L. REV. 811 (1987); Donald E. Maypole & Rosemarie Skaine, Sexual Harassment in the Workplace, 28 Soc. WORK 385 (Sept.-Oct.
1983); Wendy Pollack, Sexual Harassment: Women's Experience vx Legal Definitions, 13 HARV.
WOMEN'S L.J. 35 (1990); Krista J. Schoenheider, A Theory of Tort Liabilityfor Sexual Harassment
in the Workplace, 134 U. PA. L. REV. 1461 (1986); Mary Jo Shaney, Perceptions of Harm: The
Consent Defense in Sexual Harassment Cases, 71 IOWA L. REV. 1109 (1986); N. Morrison Torrey,
Indirect Discrimination Under Title VII: ExpandingMale Standing to Sue ForInjuries Received as a
Result of Employer Discrimination Against Females, 64 WASH. L. REV. 365 (1989); Marlisa
Vinciguerra, The Aftermath of Meritor: A Search for Standardsin the Law of Sexual Harassment, 98
YALE L.J. 1717 (1989); Michael D. Vhay, The Harms of Asking: Towards a Comprehensive Treatment of Sexual Harassment, 55 U. CHI. L. REV. 328 (1988).
See also Beth L. Stanton, Sexual Harassment:A Bibliography, 10 CAP. U. L. REV. 696 (1981).
8. See infra text accompanying notes 140-44.
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which I argue that regardless of the perspective from which one views it,
the theoretical bases for sexual favoritism and sexual harassment claims
are so similar that preferential treatment in the workplace based on sexual favoritism should be actionable under Title VII as a form of employment discrimination. After a review of Title VII sexual favoritism cases
both before and after the Meritor case, I conclude that the EEOC has
erred in narrowing the scope of an employer's liability for workplace sexual favoritism. Instead, I propose that sexual favoritism be recognized
for what it is: a distinct type of sexual harassment actionable under Title
VII.
I
SEXUAL HARASSMENT:
DEFINITIONS AND THEORIES
More than a decade after its first use in common legal parlance, the
term sexual harassment remains a "legal term of art",9 which is widely
and variously defined. One commentator has concluded that:
an operational and justiciable definition of sexual harassment has proven
elusive because definition is inextricably tied to the issue of perception.
The definition of sexual harassment - behaviorally, situationally and legally - bears directly on the resolution of all attendant issues. It affects
social science measurement and legal rule-making equally. How we measure sexual harassment depends on what behaviors we say constitute it.1 0
How one defines sexual harassment in the workplace depends on the
perspective from which certain workplace behaviors are viewed. There
are three recognized perspectives on sexuality in the workplace: the feminist perspective, the organizational perspective, and the legal perspective. t
From a feminist perspective, sexual harassment in the workplace is a
"logical consequence" of a sexist society in which women are exploited
because they are considered to be inferior.' 2 The sexual harassment of
women helps maintain the gender stratification by reinforcing women's
status as sex objects. 3 Many of those who view sexual harassment from
9. Catherine A. MacKinnon, Introduction to Symposium on Sexual Harassment, 10 CAP. U.
L. REV. i, ii (1981).
10. Eleanor K. Bratton, The Eye of the Beholder: An InterdisciplinaryExamination of Law and
Social Research on Sexual Harassment, 17 N.M. L. REV. 91, 93 (1987).
11. GUTEK, supra note 7, at 8. Professor Gutek presents these perspectives in their "purest
and strongest form" and acknowledges that they are oversimplified and neither independent nor
mutually exclusive. Id. at 10.
12. Id.
13. Id. See also Hoffmann, supra note 7. Hoffmann asserts that sexual harassment "reflects
structural inequalities between men and women in occupational hierarchies, sexual objectification of
women, and the relative absence-at least until the past decade--of an ideological framework in
which seemingly private and personal interactions are placed in a political context." Id. at I 6. She
further argues that sexual harassment is the "manifestation and a cause of subordination of women."
Id.
1991]
EROS GONE AWRY
the feminist perspective believe that the definition of sexual harassment
should reflect and be shaped by the victim's perspective. 4 Women's 5
experiences "should begin to provide a starting point and context out of
which is constructed narrower forms of abuse that will be made illegal on
16
their behalf."
The feminist perspective informs the following definitions of sexual
harassment:
the unwanted imposition of 7sexual requirements in the context of a relationship of unequal power;
the exploitation of a powerful position to impose sexual demands or pressures on an unwilling but less powerful person;' 8
any attention of a sexual nature in the context of the work situation
which has the effect of making a woman uncomfortable on the job, impeding her ability to do her work or interfering with her employment
opportunities. It can be manifested by looks, touches, jokes, innuendoes,
gestures, epithets or direct propositions. At one extreme, it is the direct
demand for sexual compliance coupled with the threat of firing if a woman refuses. At the other, it is being forced to work in an environment
in which, through various means, such as sexual slurs and/or the public
display of derogatory images of women or the requirement that she dress
in sexually revealing clothing, a woman is subjected to stress or made to
feel humiliated because of her sex. Sexual harassment is behavior which
becomes coercive because it occurs in the employment 9context, thus
threatening both a woman's job satisfaction and security.
14. See, e.g., Hoffmann, supra note 7, at 118; Carrie Menkel-Meadow, Excluded Voices: New
Voices in the Legal Profession Making New Voices in the Law, 42 U. MIAMI L. REV. 29 (1987);
Elizabeth M. Schneider, The Dialectic of Rights and Politics: Perspectivesfrom the Women's Movement, 61 N.Y.U. L. REV. 589, 606-08 (1986); Pollack, supra note 7; Bratton, supra note 10, at 105-6;
and Abrams, supra note 7, at 1203.
Professor MacKinnon describes the impact of sexual harassment on women in terms of their
autonomy:
Sexual harassment on the job undercuts a woman's autonomy outside the home by sexualizing her role in exactly the same way as within the family: sexual imposition combined
with a definition of her work in terms of tasks which serve the man, sanctioned by her
practical inability to create the material conditions of life on her own.
CATHERINE MACKINNON, supra note 3, at 216-17.
Wendy Pollack cautions that viewing the issue solely from the woman's perspective can result
in the treatment of sexual harassment as an "isolated, personal, and trivial experience." Pollack,
supra note 7, at 82.
15. I acknowledge that men can also be the victims of sexual harassment; in fact, the recognition of sexual favoritism as a form of sexual harassment may well increase the number of sexual
harassment plaintiffs who are male. I have chosen, however, to refer to the victims of sexual harassment as female both because most sexual harassment victims are female and because it is less cumbersome to do so.
16. MACKINNON, supra note 3, at 26.
17. Id. at 1.
18. Note, Sexual HarassmentClaims of Abusive Work Environment, 97 HARV. L. REV. 1449,
1451 (1984) (definition used by the Working Women's Institute).
19. This is the definition of sexual harassment used by the Working Women's Institute. See
Note, Employer Liabilityfor Coworker Sexual Harassment Under Title VII, 13 N.Y.U. REV. L. &
Soc. CHANGE 83, 83 n.2 (1984-85).
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[V:ol. 13:153
There are two organizational, or management, perspectives on sexual harassment in the workplace; both focus on the behavior of the workers, rather than on society. The older organizational view is that sexual
harassment is an interpersonal problem involving misperceptions or misunderstandings of a person's intentions. Because sexual harassment is
personal, and therefore not the organization's business, allegations of sexual harassment are usually handled informally, if at all.20 This perspective defines sexual harassment quite narrowly and would include only
"such extreme abuse as pressing repeated physical advances on an employee or firing her for refusing to submit to such advances."21
The newer management point of view is that while sexual harassment is an interpersonal phenomenon, it is aberrant and unprofessional
behavior that must be addressed by the organization.2 2 Sexual harassment from this perspective is defined as:
a form of employee misconduct which undermines the integrity of the
employment relationship. Sexual harassment is a prohibited personnel
practice when it results in discrimination for or against an employee on
the basis of conduct not related to performance, such as the taking or
refusal to take a personnel action, including promotion of employees who
submit to sexual advances or refusal to promote employees who resist or
protest sexual overtures.2 3
The legal perspective on sexual harassment focuses on both the
work environment and the effects of sexual harassment; the societal
20. GUTEK, supra note 7, at 11-12. Professor Gutek reports that "under this point of view,
protecting the reputation of the high-status person-almost always a man-from unwarranted accusations that could damage his career may be the organization's prime responsibility." Id. But see
MACKINNON, supra note 3, at 199 ("It is exactly because men feel that their acts spring from sexual
attraction to an individual woman that they can feel justified in abusing their power as employers in
the service of their sexual gratification as men."); Bratton, supra note 10, at 100 ("A view that sees
some forms of sexual harassment as normal, harmless, or humorous, necessarily rests on a theory of
the world and a theory of the state in which males are dominant, i.e., that it is natural and expected
that they be sexual aggressors, and in which females are subordinate, either secretly flattered by
attention, or 'asking for it'.").
Some social scientists who have studied sexual harassment in the workplace have labelled this
assumption the "natural-biological model." See Sandra S. Tangri, Martha B. Burt & Leanor B.
Johnson, Sexual Harassmentat Work- Three ExplanatoryModels, 38 J. Soc. IssuEs (No. 4) 33, 34
(1982). There are two versions of the "natural-biological model": both assume there is no intent to
harass. The first version is premised on the assumption that the male sex drive is stronger than the
female sex drive. The second version makes no assumption about men and women's sex drives. Id.
at 25. Little empirical evidence was found to support either version of this model of sexual harassment. Id. at 51. See also GUTEK, supra note 7, at 13.
21. Note, supra note 18, at 1452. Moreover, "[because the theory aims only to proscribe
obviously offensive behavior, the viewpoint for assessing the wrongfulness of the putative harasser's
conduct would be that of the reasonable defendant." Id.
22. GUTEK, supra note 7, at 12. The interpersonal behavior becomes the organization's business because "[olne person misuses the power associated with his or her organizational position."
Id.
23. Sexual Harassment in the Federal Government, Hearings before the Subcomm. on Investigations of the House Comm. on Post Office and Civil Service, 96th Cong., 1st Sess. 154 (1979) (testimony of Alan K. Campbell, Director of Office of Personnel Management).
1991]
EROS GONE AWRY
causes of sexual harassment and the impact of sexuality in the workplace
do not figure prominently in this perspective.24 From a legal perspective,
sexual harassment is typically defined in terms of the impact or effect
that certain behavior has on the conditions in the workplace. For example, the Equal Employment Opportunity Commission guidelines provide
that:
[u]nwelcome sexual advances, requests for sexual favors, and other verbal
or physical conduct of a sexual nature constitute sexual harassment when
(1) submission to such conduct is made either explicitly or implicitly a
term or condition of an individual's employment, (2) submission to or
rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual, or (3) such conduct has the purpose or effect of unreasonably interfering with an individual's work
performance or creating an intimidating, hostile, or offensive working
environment.
25
This definition explicitly recognizes the hostile work environment
that can result from sexual harassment, as well as the unequal power
relationship that allows the use of sex as a term or condition of employment or continued favorable review--concerns that are paramount from
the legal perspective. This perspective has also influenced judicial definitions of sexual harassment.2 6
Although these divergent perspectives produce somewhat different
definitions of sexual harassment, one factor remains constant in the defi24. GUTEK, supra note 7, at 11. Although the legal perspective is beginning to draw increasingly from the feminist perspective over the organizational-management perspective, vestiges of the
old organizational-management perspective remain. See Jew v. University of Iowa, 749 F. Supp.
946, 958 (S.D. Iowa 1990); Turley v. Union Carbide Corp., 618 F. Supp. 1438, 1441-42 (D.W. Va.
1985).
25. 29 C.F.R. § 1604.11(a) (1990).
26. See, e.g., Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986). The Court in Meritorrecognized two types of sexual harassment claims under Title VII: "quid pro quo" claims and hostile
work environment claims. Id. at 65.
A quid pro quo claim typically involves the worker's allegation that she submitted to the employer's sexual advances in order to retain or obtain employment or a benefit of employment. See 29
C.F.R. § 1604.11 (a)(2) (1990). See, e.g., Miller v. Bank of America, 600 F.2d 211 (9th Cir. 1979);
Barnes v. Costle, 561 F.2d 983 (D.C. Cir. 1977).
Hostile work environment claims, on the other hand, are more subtle. These claims usually
involve allegations of a work environment in which sexually demeaning or offensive behavior is so
severe or pervasive that the conditions of work are altered and an abusive work environment is
created. Meritor Savings Bank v. Vinson, 477 U.S. at 66. See also 29 C.F.R. § 1604.1 l(a)(3) (1990)
("[S]uch conduct has the purpose or effect of unreasonably interfering with an individual's work
performance or creating an intimidating, hostile, or offensive working environment."); Katz v. Dole,
709 F.2d 251 (4th Cir. 1983); Henson v. City of Dundee, 682 F.2d 897 (1 1th Cir. 1982); Bundy v.
Jackson, 641 F.2d 934 (D.C. Cir. 1981).
The type of sexual harassment involved in hostile work environment claims includes, for example, sexual epithets, offensive touching, repeated requests for dates or sexual activity, and sexually
demeaning jokes or photographs. Henken, supra note 7, at 1246.
One of the primary differences between quid pro quo and hostile work environment claims is
that in a hostile work environment claim, the worker's job status is not conditioned on submission to
the employer's sexual advances. Meritor Savings Bank v. Vinson, 477 U.S. at 64-65.
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[Vol. 13:153
nitions-the concept of power."'
[S]exual harassment is not about sex, it is about power.... It supports
and perpetuates a system in which one class of persons is systematically
disempowered. Sexual harassment is not only a product of gender-based
dominance; it plays an important role in maintainingthat dominance and
perpetuating circumstances in which domination-based views become
cultural norms.2 8
27. Maypole & Skaine, supra note 7, at 385 ("review of the literature revealed that all definitions of sexual harassment include the word 'unwanted' and almost all include the concept of
power").
Moreover, sexual harassment is almost uniformly defined as unwelcome sexual attention. See,
e.g., Meritor Savings Bank v. Vinson, 477 U.S. at 64-65. In one of the more controversial and
criticized aspects of the Meritor decision, Justice Rehnquist attempted to establish a standard for
determining whether sexual advances were unwelcome. In his words: "[w]hile 'voluntariness' in the
sense of consent is not a defense to such a claim, it does not follow that the complainant's sexually
provocative speech or dress is irrelevant as a matter of law in determining whether he or she found
particular sexual advances unwelcome." Id. at 69.
It.is generally accepted that "[an uncoerced, consensual intimate relationship is not sexual
harassment." See Phyllis L. Crocker & Anne E. Simon, Sexual Harassmentin Education, 10 CAP.
U. L. REv. 541, 544 n.12 (1981). When does a relationship become coercive? Who is entitled to
define the nature of the relationship and the type of advances: the alleged harasser or the alleged
victim? Catherine MacKinnon describes a "murky area where power and caring converge."
MACKINNON, supra note 3, at 54. Although a detailed analysis of these issues is beyond the scope of
this article, I take the position that any sexual attention given in the context of an unequal power
relationship should be presumed to be unwanted or unwelcomed, that any intimate relationship
formed in the workplace where there is a power imbalance between the parties to the relationship is
inherently coercive, and that the "consent" of the unequal party to such relationships should be
considered to be invalid.
At least one commentator has noted a shift towards the feminist perspective on the issue of
consent in sex cases. Professor Chamallas describes the impact that feminist critique has had on the
concept of consent:
Under the refurbished version of consent, consent is not considered freely given if it is
secured through physical force, economic pressure, or deception. Consent secured by these
inducements is no longer routinely treated as true consent-even if the woman conceivably
could have avoided the sexual encounter by resisting.
In the view of some feminists, legal reforms that only refurbish, but do not displace, the
concept of consent as a central feature of the law of sex may not be deep enough to effect
substantial change. This radical critique of consent asserts that the social meaning of 'consent' is inherently tied to a system of unequal sexual relationships in which the man actively initiates the sexual encounter and the woman is relegated to the more passive role of
responding to initiatives.
Chamallas, supra note 2, at 814 (footnotes omitted).
Similarly, Professor Hemming notes that:
Consent to sexual activity with the initial harasser or other male may be given in hopes of
eliciting protection from the male to the female. If protection is received, the female may
feel gratitude. Protection and cessation of harasser aggression is highly rewarding and may
result in passionate love. However, the male's protection will only be effective in his sphere
of influence and will, at the same time, preclude useful working relationships with other
people.
Hemming, supra note 7, at 74.
See also Phyllis Coleman, Sex in Power Dependency Relationships: Taking Advantage of the
"Fair" Sex, 53 ALB. L. REV. 95 (1988). Coleman asserts "that 'consent' to sexual relationship
obtained in power dependency relationship is inherently suspect." Id. at 96. Professor Coleman
argues that "an employee states a prima facie case when she alleges a sexual relationship commenced
during an employer-employee relationship." Id. at 137.
28. Bratton, supra note 10, at 98. See also Mary Bularzik, Sexual Harassment at the Work-
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This expression of power undermines the integrity of the workplace
by devaluing an employee's skills and work habits and valuing the employee's sexual characteristics and sexual activities. Victims of sexual
harassment are told that "their value is not in their job performance but
in their use as sexual objects." 2 9 Sexual harassment is sex discrimination
because the expression of power is, for no legitimate reason, based on sex.
Sex discrimination occurs when "sex 30is for no legitimate reason a substantial factor in the discrimination.
In the following sections of this article, I argue that sexual favoritplace: HistoricalNotes, 12 RADICAL AM. 24, 26 (1979) ("Tlhe assertion of power and dominance is
often more important than the sexual interaction."); Verta A. Taylor, How to Avoid Taking Sexual
Harassment Seriously: A New Book That Perpetuates Old Myths, 10 CAP. U. L. REV. 673 (1981)
(reviewing MARY COELI MEYER, INGE M. BERCHTOLD, JEANNENNE L. OESTREICH & FREDERICK
J. COLLINS, SEXUAL HARASSMENT
(1988)):
Sexual harassment also is not about sexual attraction as, for example, when a particular
man becomes attracted to a particular woman. Although in some cases women and men
do meet on the job and begin sexual relationships, these relationships are premised with
mutual agreement. To the contrary, sexual harassment involves sexual advances that are
not mutual, but are imposed, in most instances, upon a woman by a man who directly or
indirectly holds power over her, more often than not the direct power to hire and fire her.
Id. at 675.
But cf Ellen Trankel Paul, Sexual Harassment as Sex Discrimination:A Defective Paradigm,8
YALE LAW & POL'Y REV. 333 (1990). Professor Paul argues that the incorporation of abuse of
power into the definition of sexual harassment is unduly limiting; she prefers the more neutral definition of sexual harassment found in the EEOC guidelines. Id. at 335.
29. Women in the Workforce Hearings,supra note 2, at 96 (testimony of Sarah E. Bums, Assistant Director, Georgetown University Law Center Sex Discrimination Clinic) (citing Sexual Harassment in the Workplace, Report of the US. Merit Systems Protection Board 29 (1981)).
See also Hoffmann, supra note 7, at 108 (confluence of a sex-segregated and sex-stratified labor
force produces a "sexualized" labor force where sexual attractiveness is a requirement of many jobs,
where deference to men's entitlement to sexual flirtation is expected and where bureaucratic forms of
decisionmaking reinforce the male dominated patterns of authority).
30. Bundy v. Jackson, 641 F.2d at 942 (D.C. Cir. 1981) (citing Barnes v. Costle, 561 F.2d 983,
990 (D.C. Cir. 1977)). Some commentators have lamented the theoretical unsuitability of Title VII
to sexual harassment claims. See, e.g., Bratton, supra note 10, at 105 ("[n]either precedent developed in other Title VII contexts nor the remedies it provides are effective when applied to this form
of discrimination"); Paul, supra note 28, at 345-46 (explores "anomalies in the present treatment of
sexual harassment as Title VII sex discrimination"). See also Vinson v. Taylor, 760 F.2d 1330, 1333
n.7 (D.C. Cir. 1985) (Bork, J., dissenting) ("[p]erhaps the doctrinal difficulty in this area is due to the
awkwardness of classifying sexual advances as 'discrimination' ").
The courts' interpretation of Title VII's remedial provisions has also been criticized. See, e.g.,
Bradford, supra note 7, at 1628-30 (arguing that Congress should provide compensatory and punitive damages). See also Claypoole, supra note 7, at 1166-69 (Congress should create an explicit
federal cause of action for sexual harassment which allows for equitable, compensatory, and punitive
relief).
Despite this criticism, Title VII remains the primary basis upon which victims of sexual harassment seek a remedy for this type of discrimination. There have been, however, suggestions of viable
alternative theories of recovery. See, e.g., Bohen v. City of East Chicago, 799 F.2d 1180 (7th Cir.
1986) (victims of sexual harassment may also bring equal protection claims under 42 U.S.C. § 1983);
Schoenheider, supra note 7, at 1488 (proposing an independent theory of liability implementing a
"reasonable woman" standard and imposing "an affirmative duty on an employer to prevent and
eliminate sexual harassment in the workplace"); Paul, supra note 28, at 359-63; Terry M. Dworkin,
Laura Ginger & Jane P. Mallor, Theories of Recovery for Sexual Harassment:Going Beyond Title
VII, 25 SAN DIEGO L. REV. 125 (1988).
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ism is another form of sexual harassment because it, too, involves the
expression of power based on sex as a factor in an employment decision.
Preferential treatment of sexually compliant workers undermines the integrity of the workplace through the imposition of a sexual standard. 3
Sexual favoritism is sex discrimination when the preferential treatment of
a sexually compliant worker disadvantages those otherwise qualified
workers who refuse to "trade in sexual currency."32
I1
THE DISCRIMINATORY EFFECTS OF SEXUAL FAVORITISM
In simple terms, sexual favoritism is the preferential treatment of an
33
employee because that employee granted sexual favors to the employer.
Sexual favoritism can be a factor in the initial hiring decision, 34 it can
influence a promotion decision,3 5 or it can dictate work assignments.3 6
Most claims of sexual favoritism are based on the existence of a "consensual ' ' 37 sexual and/or romantic relationship between a co-worker and a
mutual supervisor. 38 The underlying relationships are most often between men who hold supervisory positions and women in subordinate
positions.3 9
These office relationships remain widespread and can be used as an
index of both attitudes toward sexual favoritism and the detrimental effects that follow from it. A survey of white collar workers confirmed that
"office romances" are prevalent in the modem workplace. 4' Approxi31. See infra text accompanying notes 153 and 166.
32. See infra text accompanying note 58.
33. The term "employer" is used here in the broadest sense. The sexual favor may be granted,
in fact, to another co-worker, but the practice of granting sexual favors may be condoned by the
employer. See Broderick v. Ruder, 685 F. Supp. 1269 (D.D.C. 1988).
34. See, e.g., Toscano v. Nimmo, 570 F. Supp. 1197 (D. Del. 1983).
35. See, e.g., DeCintio v. Westchester Co. Med. Ctr., 807 F.2d 304 (2d Cir. 1986), cert. denied,
484 U.S. 825 (1987); King v. Palmer, 598 F. Supp. 65 (D.D.C. 1984).
36. Priest v. Rotary, 634 F. Supp. 571 (N.D. Cal. 1986).
37. See supra note 27.
38. In some instances the advantaged person is not a co-worker but is someone who is seeking
employment. See, e.g., DeCintio v. Westchester Co. Med. Ctr., 807 F.2d at 304. In other cases the
person with whom the advantaged employee is engaged in a relationship may not be a direct supervisor of the claimant. See, e.g., Miller v. Aluminum Co. of Am., 679 F. Supp. 495 (V.D. Pa. 1988).
39. See also Robert E. Quinn, Coping with Cupid: The Formation,Impact, and Managementof
Romantic Relationshipsin Organizations, 22 ADMIN. SCI. Q. 30, 42 (March 1977), reprinted in SEXUALITY IN ORGANIZATIONS: ROMANTIC AND COERCIVE BEHAVIORS 38,42 (Dail Am Neugarten &
Jay M. Shafritz eds., 1980) (74% of the office romances reported involved a male in a higher level
position than his female counterpart) [hereinafter Quinn].
40. Id. A "third party" approach was used to gather data for this survey. Participants in the
survey were asked to report their observations of other persons' behavior.
While this survey is somewhat dated, evidence of the lasting significance of this issue is found in
the more recent publication of CORPORATE AFFAIRS: NEPOTISM, OFFICE ROMANCE & SEXUAL
HARASSMENT, A BNA SPECIAL REPORT (1988) [hereinafter CORPORATE AFFAIRS]. For example,
slightly more than half of the respondents to a survey of personnel managers conducted by the
1991]
EROS GONE AWRY'
mately 64% of the respondents reported that they knew of at least one
romantic relationship between co-workers.4 t
Participants in the survey were asked to describe how they perceived
the motives and characteristics of co-workers who were engaged in office
romances. While their responses varied, a detailed analysis of the responses revealed three types of perceived motives: job, ego, and love.4 2
More specifically:
People with job motives are perceived as being after advancement, job
security, increased power, financial rewards, and other organizational
payoffs ....
People with ego motives were perceived to be after such
personal rewards as excitement, ego satisfaction, adventure, and sexual
experience. The people who were perceived as having sincere motives
were described as being sincerely in love, and seeking companionship or a
spouse.43
The job motive was rarely attributed to males."
In addition, survey participants were asked to note behavioral
changes in persons engaged in office romances. The perceived behavioral
changes were then categorized as: competence behavior change, power
behavior change and positive behavior change.45 Competence behavior
4
change refers to changes in the performance of assigned duties at work.
American Society for Personnel Administrators agreed that "it is common to see professional interest turn into romantic attraction." Quinn, supra note 39, at 44.
41. Quinn, supra note 39, at 39. The number of office romances, in fact, may be underreported.
The respondents reported that approximately two-thirds of the participants in office romances initially tried to keep their relationship a secret because there were rules against such relationships,
because one of participants in the relationship was married, or because of general disapproval from
co-workers. Id at 44.
42. Id. at 42. Quinn acknowledged that "measuring motives and characteristics of people is a
difficult job at best." Id. His goal was simply to describe how others perceived the motives and
characteristics of those who were involved in these office relationships. This inquiry is particularly
relevant to claims of sexual favoritism under Title VII.
43. ld. at 42-43.
44. Id at 42 (the "only time that such motives were attributed to males were in the few cases3.4 percent-in which a male was involved with a female superior").
45. Id at 46.
46. The factors included in this category, along with the frequency of respondents who noted
these changes, for males who were involved in workplace relationships were:
lost respect of members [of workplace group]
became preoccupied
covered mistakes of female
began to arrive late, leave early
did less work
began missing commitments and meetings
lower quality work
made costly errors
became incompetent
39
30
29
27
25
17
16
II
10
The factors and responses in this same category for females who were involved in workplace
relationships were:
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Positive behavior change refers to changes in the worker's attitude.4 7
The last category refers to alteration of power.48
The behavioral change noted most frequently, for both males and
females involved in office romances, was that one showed favoritism to
the other.4 9 The vast majority of those surveyed said that males in workplace relationships showed favoritism to the females with whom they
were involved; a slightly lower percentage of the respondents said that
females who were engaged in workplace relationships showed favoritism
lost respect of members (of workplace group]
became preoccupied
did less work
began to arrive late, leave early
covered mistake of male
lower quality work
ignored complaints about male
began missing meetings and commitments
made costly errors
became incompetent
became inaccessible
42
40
30
28
25
20
19
13
11
10
10
Id.
47. The factors included in this category, along with the frequency of respondents who noted
these changes, for males who were involved in workplace relationships were:
was easier to get along with
became more productive
changed for the better
29
19
15
The factors and responses in this same category for females who were involved in workplace relationships were:
was easier to get along with
changed for the better
became more productive
33
19
17
Id.
48. The factors included in this category, along with the frequency of respondents who noted
these changes, for males who were involved in workplace relationships were:
showed favoritism to the female
became eyes and ears of the other
ignored complaints about the female
promoted the other
isolated the female from members
gave female more power
became inaccessible
began to flaunt new power
84
36
30
28
22
21
19
5
The factors and responses in this same category for females who were involved in workplace relationships were:
showed favoritism to male
assumed more power in the organization
isolated male from members
began to flaunt new power
gave male more power
69
26
21
16
8
Id.
49. Id. See also Carolyn I. Anderson & Phillip L. Hunsacker, Why There's Romancing at the
Office and Why it's Everyone's Problem, 62 PERSONNEL 57, 62 (Feb. 1985) cited in Chamallas, supra
note 2, at 846 n.261.
1991]
EROS GONE AWRY
165
to the males with whom they were involved."0
The survey also assessed the overall impact of office romances on the
workplace. The results were categorized as either positive or negative
impacts." The negative impact responses outnumbered the positive impact responses; that is, the respondents noted the negative impacts of
office romances more frequently than they noted positive impacts.5 2 The
most frequently noted negative impacts were: gossip, complaints and
gripes, hostilities, distorted communication, damage to the image or reputation of the workplace, and redistributed work. 3 The positive impacts, which were less frequently noted, included increased coordination,
lowered tensions and improved teamwork. 4
According to the survey, management response to office romances
typically falls into one of three categories: take no action, take positive
action or take punitive action.5 5 The most frequent management re50. Quinn, supra note 39, at 46-47.
5 1. The negative impacts and the frequency of agree responses by percentage were:
caused much gossip
complaints and gripes
caused hostilities
distorted communication
threatened image or reputation of unit
redistributed work
client awareness
lowered morale
lowered output or productivity
slowed decision making
69.8
34.2
33.1
24.6
21.8
21.7
21.6
20.8
17.8
14.9
The positive impacts and the frequency of agree responses by percentage were:
increased coordination
lowered tensions
improved teamwork
improved productivity
improved the work flow
13.3
11.8
11.5
8.3
7.3
Id. at 49.
52. Id.
53. Id.
54. Id.
55. The type of action taken by the male's superior and the frequency of agree responses by
percentage were:
No
1.
2.
3.
4.
action
decided to ignore
felt problem would resolve itself
did not want to risk taking action
did not know what to do
Punitive action
1. reprimanded
2. warned to change or leave
3.
4.
transferred
terminated
61.9
53.3
37.1
33.0
12.2
9.8
6.7
4.8
Positive action
1. openly discussed situation
32.9
2.
22.0
counseled about what to do
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sponse was to ignore the situation.5 6 The least common response was to
terminate one of the parties; however, when the management response
was termination, females were twice as likely to be terminated as males. 57
Office romances have existed for as long as there have been men and
women together in the workplace. Not all office romances result in preferential treatment or discrimination. Relationships between co-workers
of equal status or relationships between co-workers in separate departments of the workplace are not necessarily problematic. However, workplace relationships between workers of unequal status, particularly those
relationships between a worker and a supervisor, are by their very nature
problematic. Preferential treatment and favoritism often stem from these
inherently unequal workplace relationships. 58
Preferential treatment of sexually compliant workers has a disproportionate impact on women.5 9 The workplace remains largely sex-stratified. ° Because the majority of occupations are sex-stratified, men and
women seldom complete with each other for the same position. Thus,
when a female worker receives preferential treatment, the disadvantaged
worker is usually another female who was competing for the same opportunity or benefit. 6
The type of action taken by the female's superior and the frequency of agree responses by percentage
were:
No
1.
2.
3.
4.
action
decided to ignore
felt problem would resolve itself
did not want to risk taking action
did not know what to do
57.4
50.5
40.
38.4
Punitive action
1. reprimanded
2. warned to change or leave
3. transferred
4. terminated
6.4
8.0
6.3
10.7
Positive action
1. openly discussed situation
2. counseled about what to do
6.3
15.4
Id. at 50.
56. Id (61.9% of the respondents said that the male's superior decided to ignore the relationship; 57.4% of the respondents said the female's superior decided to ignore the relationship).
57. Id. (4.8% of the respondents said that the male's superior would terminate the male;
10.7% of the respondents said the female's superior would terminate her).
58. See supra note 48.
59. GUTEK, supra note 7, at 31-32. Men still hold most of the supervisory positions in the
workplace. Women are usually in subordinate positions. The author asserts that most workplace
relationships are between supervisors and subordinates; hence most workplace relationships are between male supervisors and their female subordinates. See also Quinn, supra note 39, at 42.
60. Vicki Schultz, Telling Stories about Women and Work.- JudicialInterpretationof Sex Segregation in the Workplace in Title VII Cases Raising the Lack of Interest Argument, 103 HARV. L.
REV. 1749, 1751 (1990).
61. Although the female subordinate in a workplace relationship may initially benefit from the
preferential treatment she receives from her supervisor, this benefit is often ephemeral. The literature suggests that when workplace relationships end, the woman is either transferred, fired or she
1991]
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III
SEXUAL FAVORITISM CLAIMS UNDER TITLE VII
Sexual favoritism was first recognized as a form of discrimination in
1980 when EEOC Guidelines were amended to provide that:
[w]here employment opportunities or benefits are granted because of an
individual's submission to the employer's sexual advances or requests for
sexual favors, the employer may be held liable for unlawful sex discrimination against other persons who were qualified for but denied that employment opportunity or benefit.6 2
The EEOC Guidelines categorized sexual favoritism as a "related
practice", a form of sex discrimination, to be governed by general Title
VII principles. 63 Although the EEOC issued this new provision in response to inquiries about sexual favoritism under the previous guidelines,
no reported federal cases on sexual favoritism appeared until 1983. The
case law in this area is both sparse and uneven. In the ten years since a
cause of action for sexual favoritism was first recognized by the EEOC,
only six reported cases involving claims of sexual favoritism brought
under Title VII have been reported. 61 The decisions in these six cases are
split: in 1985 the D.C. Circuit recognized sexual favoritism as a cognizaquits. See, e.g., Quinn, supra note 39, at 50-51. One management consultant recommends that
"when the lovers are of unequal rank, to avoid co-worker charges of favored treatment, the lowerranked partner should be passed over for promotions and choice assignments-even when such advancements are deserved." CORPORATE AFFAIRs, supra note 40, at 38 (advice of Natasha
Josefowitz).
Many quid pro quo and hostile environment sexual harassment claims originate in "consensual" relationships which have been terminated. See, e.g., Meritor Savings Bank v. Vinson, 477 U.S.
at 54-62.
Theoretically males have a Title VII cause of action for sexual favoritism under the EEOC
Guidelines. But cf DeCintio v. Westchester Co. Med. Ctr., 807 F.2d at 307-08 (holding employment of female therapist at position of higher authority and salary than male candidates did not
violate Title VII, even though female and hiring male administrator had a consensual sexual relationship). Because of the sex-stratified workplace few males compete with females for the same
employment benefit or opportunity. Consequently, it is not likely that many males will be disadvantaged by sexual favoritism until the workplace becomes more gender-blended.
62. 45 Fed. Reg. 74676, 74677 (1980) (to be codified at 29 C.F.R. § 1604.11(g)).
63. 29 C.F.R. § 1604.11(g) (1990). See also J. Clay Smith, Prologueto the EEOC Guidelines on
Sexual Harassment, 10 CAP. U. L. REv. 471, 477 (1981).
The interim amendments to the guidelines did not include this new section on sexual favoritism
and there is little indication in the supplementary information accompanying the final amendments
to the guidelines to indicate why this new section was added.
In his statement before a Congressional subcommittee, J. Clay Smith, Acting Commissioner of
the EEOC, testified that the Commission decided to add sub-section (g) in response to inquiries
about whether the guidelines covered cases of sexual favoritism. Sex Discriminationin the Workplace: Hearings Before the Committee on Labor and Human Resources, 97th Cong., 1st Sess. 341
(1981) [hereinafter Sex Discriminationin the Workplace Hearings]. The Acting Commissioner cautioned that "Ithis does not mean, and we did not state, that this necessarily presents a violation of
Title VII. It merely means that the charge is cognizable under Title VII and, if brought to the
Commission, will be decided under that statute." Id. at 341-42.
64. DeCintio v. Westchester Co. Med. Ctr., 807 F.2d 304 (2d Cir. 1986); Broderick v. Ruder,
685 F. Supp. 1269 (D.D.C. 1988); Miller v. Aluminum Co. of America, 679 F. Supp. 495 (W.D. Pa.
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ble claim under Title VII; 65 however, one year later, the Court of Appeals for the Second Circuit interpreted the EEOC guidelines on sexual
favoritism narrowly to hold that such claims cannot form the basis of a
sex discrimination suit under Title VII.6 6 The lower federal courts are
similarly split. Three federal district courts recognize Title VII sexual
favoritism claims; 67 one does not. 68 The United States Supreme Court
has declined to review the issue. 69 The remainder of this section will
focus on these cases and on the EEOC's subsequent efforts, through Policy Guidance, 70 to clarify this unsettled 7 1 area of Title VII law.
In the first of these cases, Toscano v. Nimmo, 72 the female plaintiff,
an unsuccessful applicant for an administrative position at a Veteran's
Administration hospital, alleged that she suffered discrimination when
the defendant appointed to the position a woman with whom he had a
sexual affair.
Margaret Toscano was one of five applicants deemed to be qualified
for the position of Chief of Ward Administration Section (Chief WAS).
Donna Nelson was ultimately selected for the position by Jesus Segovia,
Chief of the Medical Administrative Service. Toscano produced evidence that Segovia and Nelson were engaged in a sexual relationship at
the time of Nelson's selection as Chief WAS. Toscano also produced evidence of Segovia's "pattern of conduct toward women," 7 3 which the
court found was proof of his intention to award the position of Chief
WAS on the basis of received sexual favors. 74 The court also found that
Toscano was as qualified, if not more qualified, than Nelson, the woman
who Segovia chose for the position.75 In short, even though Segovia did
not specifically request sexual favors from Toscano, he had conditioned
the appointment on the receipt of sexual favors from women. The court
found that this violated Title VII because the same condition was not
1988); Priest v. Rotary, 634 F. Supp. 571 (N.D. Cal. 1986); King v. Palmer, 598 F. Supp. 65 (D.D.C.
1984); Toscano v. Nimmo, 570 F. Supp. 1197 (D. Del. 1983).
65. King v. Palmer, 778 F.2d at 880.
66. DeCintio v. Westchester Co. Med. Ctr., 807 F.2d at 306-08.
67. Broderick v. Ruder, 685 F.Supp. at 1277-78; Priest v. Rotary, 634 F. Supp. at 581-82;
Toscano v. Nimmo, 570 F. Supp. at 1199.
68. Miller v. Aluminum Co. of Am., 679 F. Supp. at 501.
69. DeCintio v. Westchester Co. Med. Ctr., 807 F.2d 304 (2d Cir. 1986), cert. denied, 484 U.S.
825 (1987).
70. EEOC Policy Guidance on Employer Liability Under Title VII for Sexual Favoritism,
DAILY LABOR REPORT (BNA) No. 32, at D-1 (Feb. 15, 1990).
71. EEOC Policy Guidance on Current Issues of Sexual Harassment, DAILY LABOR REPORT
(BNA) No. 60, at E-1 n.5 (March 28, 1990) ("[t]he law is unsettled as to when a Title VII violation
can be established in these circumstances.").
72. 570 F. Supp. 1197 (D. Del. 1983).
73. Id. at 1200.
74. Id.
75. Id. at 1202-03.
19911
EROS GONE AWRY
imposed on men.7 6
The court held that while the facts of this case were slightly different
from the "typical" Title VII sexual harassment case, it was "no different
in its theoretical underpinnings." 77 It characterized the case as one in
which the decision was based on a criterion which discriminates on the
basis of sex.78
The next reported case involving a Title VII claim of sexual favoritism was King v. Palmer.7 9 A nurse named Mabel King alleged that she
was denied a promotion which was given to Jean Grant. King also maintained that Grant, a less qualified nurse, was having a sexual relationship
with their mutual supervisor, Smith. The plaintiff presented evidence
that Grant, Who was 20 years younger than King, had fewer years of
experience as a nurse; that Grant had attended out-of-town conferences
with Smith; that Smith made the promotion decision; that Grant and
Smith occasionally had long lunches together; and that Grant frequently
disregarded her work schedule.8 0 There was also testimony about speculation in the workplace that Grant and Smith were having an affair.8 "
In assessing King's claim, the court first held that although this case
was "superficially different" from the typical case involving sexual conduct by a supervisor aimed at a subordinate, 2 the theory of the Title VII
violation was the same: "sex [was] for no legitimate reason a substantial
factor in the discrimination."8 3 Citing the EEOC Guidelines on sexual
favoritism and Toscano v. Nimmo for support, 4 the district court found
that there was sufficient evidence to support an inference that "some kind
76. Id. at 1199.
77. Id. at 1199. The court held that Section 1604.1 1(g) of the EEOC Guidelines provided the
theoretical predicate for Title VII liability for sexual favoritism.
The court's opinion in this case reflects some of the difficulty associated with the resolution of
sexual favoritism claims. Even though sexual favoritism seems like sexual harassment, it does not
always fit into one of the two recognized categories of sexual harassment: quid pro quo or hostile
environment. In this case, the district court did not attempt to categorize the claim. It merely held
that this was not a hostile environment case. Id. at 1204. On the other hand, the court did not label
it a quid pro quo claim; it simply held that basing a decision on sexual favoritism discriminates on
the basis of sex.
Despite the district court's finding that the plaintiff had not alleged a hostile environment case,
some of the facts suggest that it could have been treated as one. The court found that Segovia had
engaged in a pattern of increasingly unprofessional behavior which included phoning employees at
home to brag about his sexual encounters with other employees; making sexual advances toward
female subordinates; and touching two female employees in a suggestive manner and making suggestive remarks. Id. at 1199-1200.
78. Id. at 1199.
79. 598 F. Supp. 65 (D.D.C. 1984). For a more in depth discussion of this case see
Manemann, supra note 2, at 626-32.
80. 598 F. Supp. at 67.
81. Id. Grant's former boyfriend also testified that she had told him she had been intimate
with Smith and "was prepared to have sex with him if necessary to get the promotion." Id.
82. Id. at 66.
83. Id. at 66-67 (quoting Bundy v. Jackson, 641 F.2d 934, 942 (D.C. Cir. 1981)).
84. 598 F. Supp. at 67.
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of sexual relationship between Dr. Smith and Grant was a substantial
factor in Grant's promotion" and that King had established a prima facie
case of discrimination. 5
Despite finding that the defendant's explanation for Grant's promotion was not credible and was clearly pretextual, the district court held
that the "proof as a whole fails to satisfy the plaintiff's burden." 8 6 The
court held that the plaintiff had failed to meet her burden because she
had "offered no positive proof of sexual conduct or sexual attractiveness
as between Grant and the doctors who promoted her."8 " Accordingly,
the court entered judgment for the defendants.8 8
Because the parties agreed that allegations of sexual favoritism
could present a "cognizable cause of action under statutes prohibiting sex
discrimination in employment," 9 the issue on appeal was the district
court's finding that the plaintiff had failed to carry her burden of proving
through direct evidence the existence of the sexual relationship on which
the claim of sexual favoritism was based.' The Court of Appeals for the
D.C. Circuit reversed, holding that the plaintiff was not required to produce direct evidence that the sexual telationship had been consummated
85. Id.
86. Id. at 68.
87. Id. at 69.
88. Id. The decision in this case was quite curious. The court initially exhibited tremendous
sympathy for the plaintiff's claim, finding that she had established a prima facie case. Id. at 67. The
court further found that the evidence painted a "dismaying picture of a government agency rank
with petty jealousy, backbiting, lack of proper discipline, disregard for proper promotional practices,
and incompetence in high authority." Id. at 68. Moreover, the court characterized testimony by the
defendant as not credible and "clearly pretextual." Id. The court even suggested an attempt by the
defendant to withhold important information. Id.
Despite this fairly explicit finding of antipathy for the defendant's position, the court imposed
on the plaintiff a burden of proof which was without precedent. Id.
Ignoring its earlier finding that "some kind of sexual relationship between Grant and Smith was
a substantial factor in Grant's promotion," (Id.) the court found that:
Where a claim of sex discrimination under Title VII is made by a plaintiff contending that
one of the same sex was given favored treatment because allegedly the discriminator was
sexually attracted to the favored employee, courts must proceed with great caution given
the vagaries and infinite manifestations of sexual stimulation. If a sexual relationship is
solicited by or given the supervisor and favored treatment by the supervisor results as the
payoff, there is no difficulty. But where, as here, there is no proof of an explicit sexual
relationship or indeed of any sexual behavior between the favored employee and the supervisor, difficulties arise.
Id. at 68-69.
The court held that because there was no positive proof of a sexual relationship between Grant
and Smith, the plaintiff had failed to meet her burden. Id. at 69.
The plaintiff had argued in the alternative that even if there had been no sexual relationship
between Grant and Smith, there was some kind of sexual attraction which was the basis for the
promotion. Id. In response to this claim, the court used language which seemed to question not
only the merits of this claim but also the legitimacy of the plaintiff's original claim of sexual favoritism. The court said "[clases in this category must not rest on rumor, knowing winks and prurient
overtones or on inferences allowed in divorce law." Id.
89. 778 F.2d at 880.
90. King v. Palmer, 598 F. Supp. at 68.
1991]
EROS GONE AWRY
in order to prevail in her Title VII claim.9"
The case was remanded for consideration of an appropriate remedy. 92 On petition for rehearing, the United States expressed concern
that this decision "may represent a significant expansion of Title VII coverage." 93 The court declined to reconsider its decision en banc because
the Title VII issue had not been raised or briefed on the initial appeal,
nor had it been raised by either party in the petition for rehearing.9 4
In Priest v. Rotary,95 a waitress whose employment was terminated
claimed that her employer gave preferential treatment to female employees who submitted to his sexual advances. She brought a Title VII action
alleging sexual harassment. 96 The plaintiff, Evelyn Priest, alleged that
George Rotary was engaged in a consensual sexual relationship with
Mary Durina, another waitress, and that this relationship had advantaged Durina and disadvantaged Priest. Priest specifically alleged
that Durina was given better work assignments, was given preferential
vacation benefits, was excused from certain duties, and was otherwise
excepted from certain workplace rules.9 7 Priest also alleged that Rotary
engaged in behavior which made the workplace environment offensive
and intimidating.9" Citing Toscano v. Nimmo, 99 the court noted that:
Title VII is also violated when an employer affords preferential treatment
to female employees who submit to his sexual advances or other conduct
of a sexual nature, or when, by his conduct or statements, implies that
job benefits will be conditioned on an employee's good-natured endurance of his sexually-charged conduct or sexual advances.100
The court held that Priest had established a violation of Title VII by
tolshowing that Rotary's consensual sexual partner and others who 0had
1
treatment.
preferential
given
been
had
conduct
Rotary's
erated
The next case involving a Title VII sexual favoritism claim was
DeCintio v. Westchester County Medical Center.' °2 The plaintiffs in
DeCintio were seven male respiratory therapists who brought a Title VII
action against their employer alleging that they had been discriminated
against when their employer, acting through James Ryan, hired a woman
91. 778 F.2d at 882.
92. Id. at 882. The plaintiff also alleged that she was the victim of a hostile work environment
and reprisals for having filed a complaint. These claims were also remanded for further consideration. Id. at 883.
93.
Id.
94. Id.
95. 634 F. Supp. 571 (N.D. Cal. 1986).
96. Id. at 574. The plaintiff also sought compensatory and exemplary damages for false imprisonment, assault and battery, and intentional infliction of emotional distress. Id.
97. See id.at 576.
98. Id.
99. See supra text accompanying notes 72-78.
100. 634 F. Supp. at 581.
101. Id. at 581-82.
102. 807 F.2d 304 (2d Cir. 1986). See also Manemann, supra note 2, at 632-35.
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with whom Ryan was having a consensual romantic relationship as Chief
Respiratory Therapist. 103 The male respiratory therapists, each of whom
was seeking a promotion to the position of Chief Respiratory Therapist,
alleged that Ryan added a special requirement to the Chief Respiratory
Therapist job description, which none of them met, but which the successful candidate, Jean Guagenti, did meet.lo°
The district court found that Ryan and Guagenti were engaged in a
consensual romantic relationship at the time she was hired and that the
defendant's reliance on the additional job requirement was pretextual. 05
Accordingly, the district court held that the defendants had violated Title VII. 6
On appeal the Second Circuit framed the issue as follows:
whether under Title VII
.
. . ,
the phrase "discrimination on the basis of
sex" encompasses disparate treatment premised not on one's gender, but
rather on a romantic
relationship between an employer and a person
07
preferentially hired. 1
The court characterized King v. Palmer08 as a case in which the court
recognized a Title VII claim for non-gender based sex discrimination and
declined to adopt its view." ° The Second Circuit court distinguished
Toscano v. Nimmo 110 as a case in which the Title VII "claim itself was
premised on the coercive nature of the employer's acts, rather than the
fact of the relationship itself." '" It concluded that the claim in Toscano
was the "substantial equivalent" of a sexual harassment claim." 2 Furthermore, the court found that the EEOC Guidelines on sexual favoritism did not buttress the plaintiffs' claim because they apply only where
there is an element of coercion or harassment."13
103. 807 F.2d at 305. The plaintiffs also filed a claim under the Equal Pay Act, 29 U.S.C.
§ 206(d)(1) (1982). This claim was denied on the ground that there was "no valid justification for
defining 'sex' for Equal Pay Act purposes in a manner inconsistent with the words' meaning under
Title VII." Id. at 308.
104. Id. at 305. The special requirement added by Ryan was that the applicant be registered
with the National Board of Respiratory Therapists (NBRT). NBRT registration requires successful
completion of an examination and prior experience as a respiratory therapist. Id. at 305 n. 1.
105. Id. at 306.
106. Id. The district court also found that the defendants had violated the Equal Pay Act. Id.
107. Id.
108. See supra text accompanying notes 79-94.
109. DeCintio v. Westchester Co. Med. Ctr., 807 F.2d at 307.
110. See supra text accompanying notes 72-78.
111. DeCintio v. Westchester Co. Med. Ctr., 807 F.2d at 307.
112. Id.
113. Id. at 307-08. This interpretation of the Guidelines was based on the court's finding that
the use of the word "submission" implied coercion or harassment. Id. The court further held that
"sexual relationships between coworkers should not be subject to Title VII scrutiny, so long as they
are personal, social relationships." Id. (citing the preamble to Interim Guidelines on Discrimination
Because of Sex, 45 Fed. Reg. 25024 (1980)). The supplementary information which accompanies the
interim guidelines fails to support the court's finding. Instead the relevant language of the prefatory
information provides that:
1991]
EROS GONE AWRY
Instead, relying on a restrictive reading of the case law and the
EEOC Guidelines and a narrow interpretation of the meaning of the
word "sex" in Title VII, I 4 and to avoid the involvement of the "EEOC
and the federal courts in the policing of intimate relationships," ' the
court found that "voluntary, romantic relationships cannot form the basis of a sex discrimination suit" under Title VII. 6
The same result was reached in Miller v. Aluminum Company of
America." 7 The plaintiff, Nancy Miller, filed a Title VII action against
her former employer alleging inter alia that her supervisor, Joseph
Caylor, had treated her less favorably than Mary Holihan, a fellow employee who was having a romantic relationship with the plant manager,
Thomas Plantin. t8
The district court held as a matter of law that assertions of sexual
favoritism do not state a Title VII claim." 9 The court rejected those
cases which recognize such claims "[b]ecause they underestimate the essential element of disparate treatment based on gender." 2 °
The most recent sexual favoritism case is Broderick v. Ruder. 2 , In
Broderick, the plaintiff, a staff attorney at the Securities and Exchange
Commission, brought a Title VII action alleging inter alia that the defendant had created a sexually hostile or offensive work environment by
giving preferential treatment to those employees who submitted to their
managers' sexual advances. The plaintiff, who received only one promotion during the five years in question, alleged that conduct of a sexual
nature was pervasive, that she was sexually harassed,1 22 and that the
preferential treatment of those employees who submitted to the sexual
advances undermined her motivation and job performance. After recognizing that Title VII permits a claim for hostile work environment, the
district court also found as a matter of law that "Title VII is also violated
Interim § 1604.1 1(b) recognizes that the question of whether a particular action or incident
establishes a purely personal, social relationship without a discriminatory employment effect requires a factual determination. In making such a determination, the Commission
will look at the record as a whole and at the totality of the circumstances, emphasizing the
nature of the sexual advances and the context in which the alleged incidents occurred. The
determination of the legality of a particular action will be made from the facts, on a case by
case basis.
Id.
114. 42 U.S.C. § 2000e-2(a)(1) (1988) (prohibits discrimination in employment "against any
individual with respect to his compensation, terms, conditions, or privileges of employment, because
of such individual's race, color, religion, sex, or national origin").
115. 807 F.2d at 308.
116. Id.
117. 679 F. Supp. 495 (W.D. Pa. 1988).
118. Id. at 500-01.
119. Id. at 501.
120. Id.
121. 685 F. Supp. 1269 (D.D.C. 1988).
122. Id. at 1278. The court found this allegation to be true but deemed it less important than
the fact that the plaintiff was forced to work in a sexually abusive and hostile environment. Id.
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when an employer affords preferential treatment to female employees
who submit to sexual advances or other conduct of a sexual nature and
such conduct is a matter of common knowledge."' 2 3 Using a hostile environment analysis, the court found for the plaintiff, holding that "consensual sexual relations, in exchange for tangible employment benefits,
while possibly not creating a cause of action for the recipient of such
sexual advances who does not find them unwelcome, do, and in this case
did, create and contribute to a sexually hostile working environment."' 2 4
Three of these six sexual favoritism cases were decided before the
Supreme Court's decision in Meritor v. Vinson. 2 5 Thus, to some extent
these courts were exploring uncharted territory. Even before the
Supreme Court's decision in Meritor, there was general agreement that
sexual harassment was actionable as sex discrimination under Title
VII;' 26 however, the limits of this theory were somewhat uncertain, particularly with regard to hostile work environment claims.' 2 7
Despite, or perhaps because of, this uncertainty, all of the pre-Meritor sexual favoritism cases were decided in favor of the claimant. In
Toscano, the court treated the plaintiff's sexual favoritism claim much
like a sexual harassment claim. In fact, the court noted that the theoretical underpinnings of sexual favoritism and sexual harassment cases were
the same and relied on the EEOC guidelines on sexual favoritism as well
as several sexual harassment cases to find a Title VII violation. 28 The
theoretical basis of the plaintiff's claim of sexual favoritism was not
before the court in King v. Palmer because the parties agreed that allegations based on a sexual relationship were cognizable under Title VII. In
Priest v. Rotary, 129 the court used the Toscano precedent to find in favor
30
of the plaintiff on her sexual favoritism claim.'
The law of sexual favoritism seemed to be headed toward the recognition of sexual favoritism as a distinct injury which is actionable under
Title VII principles as either a form of sexual harassment or as an in123. Id. at 1277. In support of its holding, the court cited Priest v. Rotary, 634 F. Supp. 571
(N.D. Cal. 1986); King v. Palmer, 598 F. Supp. 65 (D.D.C. 1984); Toscano v. Nimmo, 570 F. Supp.
1197 (D. Del. 1983); 29 C.F.R. § 1604.11(g).
124. 685 F. Supp. at 1280.
125. The sexual favoritism cases decided prior to the Supreme Court's decision in Meritor are:
Priest v. Rotary, 634 F. Supp. 571 (N.D. Cal. 1986); King v. Palmer, 598 F. Supp. 65 (D.D.C. 1984);
Toscano v. Nimmo, 570 F. Supp. 1197 (D. Del. 1983). The post-Meritorsexual favoritism cases are:
DeCintio v. Westchester Co. Med. Ctr., 807 F.2d 304 (2d Cir. 1986); Broderick v. Ruder, 685 F.
Supp. 1269 (D.D.C. 1988); Miller v. Aluminum Co. of Am., 679 F. Supp. 495 (W.D. Pa. 1988).
126. See supra note 30 and accompanying text.
127. As one commentator noted, "although the conceptual battle for recognition of sexual harassment as sex discrimination is over, the need for a deeper legal understanding of the problem
remains." Note, supra note 18, at 1467.
128. Toscano v. Nimmo, 570 F. Supp. at 1199.
129. Priest v. Rotary, 634 F. Supp. 571 (N.D. Cal. 1986).
130. Id. at 581 and supra text accompanying notes 72-78.
EROS GONE AWRY
1991]
dependent theory of liability. However, following the Supreme Court's
decision in Meritor, there was a marked difference in the courts' treatment of sexual favoritism cases. For example, in DeCintio the Second
Circuit focused on the language and jurisprudence of Title VII, rather
than sexual harassment law, to dispose of the plaintiff's sexual favoritism
claims.131 Because the Second Circuit treated the claim as a disparate
treatment Title VII sex discrimination case,' 3 2 it gave little consideration
to Meritor and the Supreme Court's analysis of sexual harassment
claims. 133 Using a strict Title VII disparate treatment analysis, the court
found that because the disadvantaged male claimants faced the same prenot the employer's lover would face,
dicament that any female who was
34
there was no sex discrimination. 1
In Miller v. Aluminum Co. of America, the district court used a sexual harassment quid pro quo analysis to take the plaintiff's sexual favoritism case outside the reach of the EEOC guidelines on sexual favoritism.
It found that the plaintiff had failed to show that "any of her supervisors
conditioned employment benefits on her submission to his sexual advances." '" The court cited the DeCintio decision with approval and held
that because males and females had been equally disadvantaged by the
relationship at issue, the plaintiff could not state a Title VII cause of
action. 136 The court referred to the Meritor decision, but only to set the
standard for its consideration of the plaintiff's related hostile work environment claims.
137
In Broderick v. Ruder the court used the Meritor hostile work environment sexual harassment analysis to find that by "forcing" the plaintiff
to work in an environment where the defendants bestowed preferential
treatment upon those who submitted to their sexual advances, the defendants had violated Title VII.13' The district court's opinion does not
make clear whether or not the court considered the plaintiff's sexual favoritism claim to be separate from or a part of her hostile work environment claim. 139 In any event, it is clear that the court employed the
131.
action at
132.
romantic
133.
134.
135.
807 F.2d at 307. The court distinguished Toscano on the grounds that the "Title VII
issue in Toscano ... was the substantial equivalent of a 'sexual harassment' suit." Id.
Id. at 306 (disparate treatment claim is one "premised not on one's gender, but rather on a
relationship between an employer and a person preferentially hired").
Id. at 306-07.
Id. at 308.
Miller v. Aluminum Co. of Am., 679 F. Supp. at 501. The court erroneously cited
§ 1604.1 l(g) of the EEOC Guidelines for this proposition. This section of the guidelines refers to
sexual favoritism, not quid pro quo harassment. Id.
136.
Id.
137.
138.
Id.
685 F. Supp. at 1278.
139. Id. The district court first recognized that a hostile work environment claim is actionable
under Title VII. Id. at 1277. It then said "[additionally, Title VII is also violated when an employer affords preferential treatment to female employees who submit to sexual advances or other
INDUSTRIAL RELATIONS LAW JOURNAL
[Vol. 13:153
Meritor hostile work environment analysis, which requires proof that the
offensive behavior be pervasive in order to recover under Title VII.1"
None of the post-Meritor cases explicitly disavowed the legitimacy
of sexual favoritism claims; however, taken together the cases reveal an
intention to narrow the scope of an employer's liability for sexual favoritism in the workplace. This intent is evidenced by the EEOC Policy Guidance on sexual favoritism, which was issued after the Meritor
decision.141 The Policy Guidance clearly narrows the employer's scope
of liability by recognizing just two forms of sexual favoritism: one which
is based on coerced sexual conduct and one which is based on claims of
widespread sexual favoritism.142 The new EEOC policy on sexual favoritism requires claimants to state their claims as either quid pro quo or
hostile work environment sexual harassment.
The EEOC's post-Meritor view of sexual favoritism is that "Title
VII does not prohibit isolated instances of preferential treatment based
upon consensual romantic relationships." '4 3 Preferential treatment or
sexual favoritism which stems from an isolated "consensual" relationship
between a worker and supervisor does not violate Title VII, even though
third parties, male and female, may be disadvantaged by the
relationship.14 4
conduct of a sexual nature and such conduct is a matter of common knowledge." Id. (emphasis
added).
At first glance it appears that court does recognize two separate causes of action. In the final
analysis, however, the court seems to telescope the sexual favoritism claim into the hostile work
environment claim. See id.
140. See Broderick v. Ruder, 685 F. Supp. at 1278.
141. EEOC Policy Guidance on Employer Liability for Sexual Favoritism, DAILY LABOR REPORT (BNA) No. 32, at D-1 (Feb. 15, 1990). This policy guidance which was issued in February of
1990 purports to provide "guidance on the extent to which an employer should be held liable for
discriminating against individuals who are qualified for but are denied an employment opportunity
or benefit, where the individual who is granted the opportunity or benefit received it because that
person submitted to sexual advances or requests." Id. However, in subsequent policy guidance on
sexual harassment, the EEOC acknowledges that the law on sexual favoritism is unsettled. Policy
Guidance on Current Issues of Sexual Harassment, DAILY LABOR REPORT (BNA) No. 32, at D-4
n.5 (Mar. 28, 1990). The purpose of this policy guidance is to "provide guidance on defining sexual
harassment and establishing employer liability in light of recent cases." Id. at D-2.
142. Policy Guidance on Employer Liability Under Title VI7for Sexual Favoritism, DAILY LABOR REPORT (BNA) No. 32, at D-I (Feb. 15, 1990) (emphasis added). The EEOC also recognized a
hybrid form of sexual harassment which it labelled "implicit quid pro quo." This type of harassment
occurs when a manager engages in widespread sexual favoritism which communicates that the "way
for woman (sic) to get ahead in the workplace is by engaging in sexual conduct or that sexual
solicitations are a prerequisite to their fair treatment." Id. at 6. Women who are affected by this
message could have an "implicit quid pro quo" claim, while men who are offended by the message
could have a hostile environment claim. Id.
143. Id. (citation omitted). In support of this restrictive view of sexual favoritism the EEOC
cited Miller v. Aluminum Co. of Am. and DeCintio v. Westchester Co. Med. Ctr.. The EEOC acknowledged, but apparently dismissed, the contrary precedent of King v. Palmer.
144. The EEOC Policy Guidance provides an example of the type of sexual favoritism which
would not result in employer liability:
Charging Party (CP) alleges that she lost a promotion for which see was qualified because
1991]
EROS GONE AWRY
For the first time, sexual favoritism is defined as either a derivative
quid pro quo claim or as a hostile work environment claim. Accordingly, the claimant must establish either that the underlying sexual relationship is based on coercion or that the underlying sexual relationship is
one of a number of such incidents which combine to make the workplace
environment abusive or hostile. 145
IV
RETHINKING TITLE VII LIABILITY FOR SEXUAL
FAVORITISM
The post-Meritor/EEOCdoctrine of sexual favoritism is based on a
misinterpretation of the Supreme Court's decision in Meritor and reflects
an erroneously narrow view of the legal wrong of sexual harassment.
Sexual favoritism is a distinct form of sexual harassment which should be
actionable as a separate claim under Title VII.
The Meritor decision supports an expanded theory of sexual harassment which recognizes sexual favoritism as a distinct form of sexual harassment. The Supreme Court in Meritor employed a two step analysis to
define sexual harassment: it considered first the type of conduct involved, and second the effect of this conduct.146 The Court noted that
the types of workplace conduct which may be actionable under Title VII
as sexual harassment "include '[u]nwelcome sexual advances, requests
for sexual favors, and other verbal or physical conduct of a sexual nature.'
",,4
Neither the tone nor the language of the Court's holding indi-
cated an intention to exclude other acts of sexual misconduct in the
workplace which might violate Title VII.
To determine whether acts of sexual misconduct constituted sexual
the co-worker who obtained the promotion was engaged in a sexual relationship with their
supervisor. EEOC's investigation discloses that the relationship at issue was consensual
and that the supervisor never subjected CP's co-worker or any other employees to unwelcome sexual advances. The Commission would find no violation of Title VII in these circumstances, because men and women were equally disadvantaged by the supervisor's
conduct for reasons other than their genders.
Policy Guidance on Employer Liability under Title VII for Sexual Favoritism, DAILY LABOR REPORT (BNA) No. 32, at D-I (Feb. 15, 1990).
145. At least one commentator proposed this approach prior to the issuance of the EEOC Policy Guidance. Shearer, supra note 7, at 63. Shearer asserts that § 1604.11(g) of the Guidelines
should be interpreted as requiring that "there must have been underlying sexual harassment of the
individual receiving preferential treatment as a basis for the claim of the person who was denied a
benefit or opportunity" and that § 1604.1 l(g) should be interpreted to provide a "means of protecting employees from the adverse effects of a workplace made hostile by preferential treatment for
employees who are sexually involved with supervisory personnel." Id. at 64.
146. Meritor Savings Bank v. Vinson, 477 U.S. at 65. This two step approach to the definition
of sexual harassment is suggested by the EEOC Guidelines on Discrimination Because of Sex. 29
C.F.R. § 1604.11(a) (1991).
147. Meritor Savings Bank v. Vinson, 477 U.S. at 65 (emphasis added). This language comes
from § 1604.(ll)(a) of the EEOC Guidelines on Discrimination Because of Sex. 29 C.F.R.
§ 1604.11(a) (1991).
INDUSTRIAL RELATIONS LAW JOURNAL
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harassment, the Court also considered the effects of the misconduct.
The Court noted that "a plaintiff may establish a violation of Title VII by
proving that discrimination based on sex has created a hostile or abusive
work environment."' 48 In recognizing a cause of action for hostile environment sexual harassment, the Court soundly rejected the defendant's
argument that Congress was not concerned with the "purely psychological aspects of the workplace environment." '4 9 The Court could have restricted its analysis of the plaintiff's sexual harassment claim to
consideration of the more widely accepted quid pro quo theory of sexual
harassment; it chose instead to recognize the validity of the plaintiff's
hostile environment claim and thus give victims of sexual harassment an
additional avenue of recourse. 5 ° Moreover, the Court also expressed
concern about the arbitrary barriers to equality created by workplace
harassment.
'
The post-Meritor/EEOCdoctrine of sexual favoritism fails to recognize that workers who are disadvantaged by preferential treatment based
on sexual favoritism are in every respect victims of a type of sexual harassment that is just as real and just as offensive as the quid pro quo and
hostile work environment harassment recognized in Meritor. 5 2
The present doctrine of sexual favoritism under the EEOC considers
sexual favoritism claims to be derivative and requires that the underlying
relationship be nonconsensual.'' In doing so, it ignores the impact that
even consensual sexual relationships in the workplace (particularly those
between persons of unequal power) can have on co-workers. When coworkers are disadvantaged by these relationships, the message they receive is that the only way to advance in the workplace is to "use" or
148. Meritor Savings Bank v. Vinson, 477 U.S. at 66.
149. Id. at 64.
150. Henken, supra note 7, at 1263 ("hostile work environment claim developed because women
needed a viable course of legal action in situations that fell outside of the quid pro quo exchange")
(citing C. LEFCOURT, WOMEN AND THE LAW § 3.04 (release No. 2, July 1988)).
151. Meritor Savings Bank v. Vinson, 477 U.S. at 67 (quoting Henson v. Dundee, 682 F.2d 897,
902 (11th Cir. 1982)):
Sexual harassment which creates a hostile or offensive environment for members of one sex
is every bit the arbitrary barrier to sexual equality at the workplace that racial harassment
is to racial equality. Surely, a requirement that a man or woman run a gauntlet of sexual
abuse in return for the privilege of being allowed to work and make a living can be as
demeaning and disconcerting as the harshest of racial epithets.
152. One commentator suggests that:
[A] real connection between sexual harassment and sexual payoff probably exists because
work forces permeated with harassment also tend to be likely environments for sexual
payoffs. Moreover, in sexual payoff cases, the "advantaged" employee is likely to be a
woman, and the decision maker, a man. In these cases, the specter of sexual harassment is
often present. If the courts are particularly desirous of eliminating sexual harassment, they
will be inclined to prohibit sexual payoffs as well.
Chamallas, supra note 2, at 849.
153. Of course, one way to meet this obstacle is to accept the argument that workplace relationships between persons of unequal power are inherently coercive. See supra note 27.
EROS GONE AWRY
1991]
"surrender" one's sexuality."4 This is the same message that victims of
direct sexual harassment receive. This message is just as offensive when
it is communicated to a worker who is not the direct recipient of the
harassment; it should therefore be prohibited by Title VII regardless of
the nature of the underlying relationship.
It is the imposition of a sexual standard, not the nature of the relationship from which the standard originates, which should give rise to a
claim of sexual favoritism. It is the use of this sexual standard to the
disadvantage of other equally qualified workers which is the gravamen of
the sexual favoritism claim.
The restrictive interpretation of § 1604. l1(g) of the Guidelines favored by the EEOC and the DeCintio and Miller courts is repugnant
because it forces an even closer inquiry into the nature of the underlying
sexual relationship on which the claim of sexual favoritism is based. In
addition to having to prove the existence of a sexual relationship between
the advantaged employee and the employer, the plaintiff also has to
prove that the advantaged employee was coerced into the underlying relationship.' 5 5 It would be virtually impossible to prove that the underlying relationship is or was coercive without the cooperation of the
advantaged party. 5 6 It is unlikely that a worker who has been
advantaged by a workplace relationship would provide evidence of coercion. Moreover, this type of inquiry into the details of the workplace
relationship at issue would lead directly to the exact result that the
DeCintio court sought to avoid: "the policing of intimate
relationships."
57
EEOC guidelines do not perforce require a restrictive interpretation
of § 1604.11 (g). The supplementary information which accompanies the
154. See Chamallas, supra note 2, at 856 ("What makes sex based favoritism so damaging, however, may flow more from the message it conveys than from any specific misallocation of benefits.
When a female employee observes that another female employee has received favored treatment
because of her sexual relationship with the supervisor, she may be led to believe that sexual receptiveness is expected from female employees.").
155. DeCintio v. Westchester Co. Med. Ctr., 807 F.2d at 307 ("no justification for defining 'sex'
for Title VII purposes, so broadly as to include an ongoing, voluntary, romantic engagement");
Miller v. Aluminum Co. of Am., 679 F. Supp. at 501 (citing Decintio v. Westchester Co. Med. Ctr.,
807 F.2d 304 (2d Cir. 1986)) ("preferential treatment on the basis of a consensual romantic relationship between a supervisor and an employee is not gender-based discrimination").
156. See Hemming, supra note 7.
157. DeCintio v. Westchester Co. Med. Ctr., 807 F.2d at 308. Some relationships, particularly
those in the workplace, begin with consent but become nonconsensual. "Consent to sexual activity
with the initial harasser or other male may be given in hopes of eliciting protection from the male to
the female. If protection is received, the female may feel gratitude. Protection and cessation of
harasser aggression is highly rewarding and may result in passionate love." Hemming, supra note 7,
at 74. See also Women in the Workforce Hearings, supra note 2, at Ill (prepared statement of
Lorence L. Kessler, attorney, McGuinness & Williams). While acknowledging that it was difficult
to gather reliable statistics of the point, Kessler cited a survey by psychologist Srully Blotnick which
found that "even though some 20 percent of romantic relationships which begin in the workplace do
result in marriage, workplace relationships overall have an average duration of 51 days. This sug-
INDUSTRIAL RELATIONS LAW JOURNAL
[Vol. 13:153
final amendments to the guidelines refers to the "question of whether a
third party who was denied an employment benefit would have a charge
cognizable under Title VII where the benefit was received by a person
who was grantingsexual favors to their mutual supervisor." ' 5 8 The common meaning of the word "grant" does not connote coercion.159 The
provisions of § 1604.1 (g) could therefore apply equally to underlying
relationships which are not coercive. In fact, the EEOC previously took
the position that:
[s]ection 1604.11(g) applies with equal force to a situation in which the
acquiescence of the other female to her employer's request for sexual favors was consensual, as in this case. Section 1604.11 (g) draws no
distinc160
tion between 'unwelcome' as opposed to consensual behavior.
This interpretation of § 1604.11(g) is more consistent with the
avowed purpose of subsection (g), which is to a create a "balance of protection of all persons in the workplace" and "afford protection for persons who are not involved in the situation but who, nevertheless, are
adversely affected by the sexual conduct of others."' 1
The 1990 EEOC policy guidance focuses solely on the Meritor hostile work environment standard in defining claims of sexual favoritism.
The Meritor hostile work environment standard requires that "[fqor sexual harassment to be actionable, it must be sufficiently severe or pervasive
'to alter the conditions of [the victim's] employment and create an abusive working environment."'' 62 As interpreted by the EEOC, this standard fails to recognize that in some instances even an isolated case of
sexual favoritism can be sufficiently abusive to affect a "term, condition
or privilege" of employment within the meaning of Title VII.161 This
standard may be appropriate for cases of atmospheric or environmental
sexual harassment, but it is not appropriate in a case of sexual favoritism
gests that what was once welcome can become unwelcome." Id. At what point in the continuum
would the nature of the relationship be gauged?
This narrow interpretation of sexual favoritism which is dependent on proof of an underlying
coercive relationship will not permit judicial intervention where a party in the underlying relationship is too intimidated to assert her own cause of action. See Chamallas, supra note 2, at 853 n.289
and accompanying text.
158. 45 Fed. Reg. 74676-77 (1980) (emphasis added).
159.
The word grant is defined as "to agree or assent to." WEBSTER'S THIRD NEW INTERNA-
TIONAL DICTIONARY 989 (1981).
160. Petition for Certiorari to the United States Court of Appeals for the Second Circuit at A40,
46, DeCintio v. Westchester Co. Med. Ctr., 807 F.2d 304 (2d Cir. 1986) (No. 86-1946) (opinion of
the EEOC in Matter of the Request to Reopen by United States Postal Service, Request No.
05830088 (Oct. 8, 1982)).
161. Sex Discriminationin the Workplace Hearings,supra note 63, at 342 (testimony of J. Clay
Smith, Acting Commissioner of the EEOC).
162. Meritor Savings Bank v. Vinson, 477 U.S. at 67 (quoting Henson V. Dundee, 682 F.2d 897,
904 (1 1th Cir. 1982)).
163. See Meritor Savings Bank v. Vinson, 477 U.S. at 67 ("not all workplace conduct that may
be described as 'harassment' affects a 'term, condition, or privilege' of employment within the meaning of Title VII").
1991]
EROS GONE AWRY
where a worker can be directly disadvantaged by a single act of sexual
favoritism. The type of harm alleged in most cases of sexual favoritism is
more akin to a quid pro quo claim of harassment in which there is "economic or tangible discrimination."''
CONCLUSION
The narrow definition of sexual harassment on which the post-Meritor/EEOC doctrine of sexual favoritism is based warrants re1 65
examination.
Sexual favoritism is sexual harassment. Sexual favoritism is simply
a less direct expression of power, which objectifies both the sexually compliant employee and the disadvantaged employee.166 By imposing a sexual standard to measure employees' performance and worth, the
employer tells employees that "their value is not in their job performance
but in their use as sexual objects."' 167 The use of a sexual standard focuses on employees' sexuality rather than their abilities; it devalues the
164. See Meritor Savings Bank v. Vinson, 477 U.S. at 64. In all of the reported cases of sexual
favoritism decided to date, the plaintiffs have alleged that they were denied some tangible, economic
job benefit because of their employer's preferential treatment of a co-worker.
Where rampant or pervasive sexual favoritism in the workplace results in an abusive work
environment, but does not otherwise directly disadvantage a particular worker or workers, a Title
VII action would be more appropriately framed as a hostile work environment, not sexual favoritism, claim. The plaintiff in Broderick brought both a sexual favoritism and a hostile work environment claim. Broderick v. Ruder, 685 F. Supp. at 1270. The plaintiff alleged, and the district court
found, that she was disadvantaged because co-workers who submitted to their supervisors' sexual
advances received preferential treatment. Id. at 1269.
165. Indeed, periodic reformulations of the theory of sexual harassment have been anticipated
since the theory was first proposed. See, e.g., MACKINNON, supra note 3, at 26. Professor MacKinnon described the process as follows:
I envision a two-way process of interaction between the relevant legal concepts and women's experience. The strictures of the concept of sex discrimination will ultimately constrain those aspects of women's oppression that will be legally recognized as
discriminatory. At the same time, women's experiences, expressed in their own way, can
push to expand that concept. Such an approach not only enriches the law. It begins to
shape it so that what really happens to women, not some male version of what happens to
women, is at the core of the legal prohibition. Women's lived-through experience, in as
whole and truthful a fashion as can be approximated at this point, should begin to provide
the starting point and context out of which is constructed the narrower forms of abuse that
will be made illegal on their behalf.
Id. (emphasis in original)
Sexual Harassment Hearings,supra note 3, at 10 (statement of Donna Lenoff, Staff Attorney,
Women's Legal Defense Fund) ("the main pitfall to be avoided [in defining the term sexual harassment] is too restrictive a definition").
166. The focus here is on how the sexually non-compliant employee is harmed by preferential
treatment of the sexually compliant employee. In many respects the injury suffered by the sexually
compliant employee is similar.
167. Women in the Workforce Hearings,supra note 2, at 96 (prepared statement of Sarah Burns,
Assistant Director, Georgetown University Law Center Sex Discrimination Clinic). A study by the
U.S. Merit Systems Protection Board found that more than 90% of the workers surveyed believe
that morale suffers when it appears as though some employees get ahead because of their sexuality.
Id. (citing SEXUAL HARASSMENT IN THE WORKPLACE, REPORT OF THE U.S. MERIT SYSTEMS
PROTECTION BOARD 29 (1981)).
INDUSTRIAL RELATIONS LAW JOURNAL
worker's real worth, fosters resentment towards women, and reinforces
the insidious stereotypical notion that women can "sleep their way to the
top." Such a standard and its effect on the workplace are exactly the
discrimination which Title VII was intended to eliminate.
The prevailing doctrine of sexual favoritism fails to reflect workers'
experiences, and it fails to address and provide a remedy for the distinct
injury suffered by workers disadvantaged by their employers' sexual favoritism. Sexual favoritism is more than unfair; it is sexual harassment
and thus discrimination because it uses sex in the decision-making process for no legitimate reason.
The elimination of inequality in the workplace t 68 cannot be achieved
when a segment of workers who are disadvantaged by sexual favoritism
are left without a remedy or are forced to distort their claims in order to
be heard. One way to achieve the goal of equality is to empower the
victims of sexual favoritism and to legitimize their sense of injury and
outrage by recognizing that the preferential treatment of sexually compliant employees is sexual harassment when it disadvantages non-compliant
employees or employees who for any reason are not involved with their
69
supervisors. t
168. There is a lack of consensus on the goals to be furthered by the recognition of sexual
harassment as a legal wrong. Frances Hoffmann found a "basic tension" in the literature on sexual
harassment which she reduced to the following questions:
Is the object to eliminate the behavior itself or to eliminate the inequality between men and
women which gives rise to the behavior? If inequality is the central concern, what effects on power
and status differences between men and women can we expect from the elimination of sexual harassment? Conversely, if the goal is the elimination of sexual harassment, are prohibitions on the behavior of individuals or protective grievance procedures likely to produce the desired results or are there
structural transformations which would be a more effective means of addressing the problem? Hoffmann, supra note 7, at 106.
169. "[W]omen can most clearly perceive that their sense of injury and outrage is legitimate if
what happened to them is explicitly made illegal, rather than it is only made illegal when presented
in a distorted form that fits pre-existing legal doctrines." Crocker and Simon, supra note 27, at 545
(citations omitted).